Best Wage And Hour Lawyers Answers: What Can I do if my job reduces my hours on my timecard? Can my supervisor make me punch our and keep working? Can the company I work for pay me cash for overtime hours so that I don’t get time and a half?
Everyone knows that the Fair Labor Standards Act (“FLSA“) establishes minimum wage and overtime pay requirements, but it also requires the employer to keep track of hours worked. But the FLSA also contains recordkeeping obligations that employers must comply with regarding the hours worked by their nonexempt employees. (Best Law Read: Who qualifies for overtime pay?).
The failure by an employer to comply with the accurate recordkeeping requirement carries several consequences.
First, as held by the United States Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687–88, 66 S. Ct. 1187, 1192–93, 90 L. Ed. 1515 (1946), the failure to keep accurate records give the employee the right to estimate the number of hours worked:
When the employer has kept proper and accurate records the employee may easily discharge his burden by securing the production of those records. But where the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. … The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had [it] kept records in accordance with the requirements of … the Act.
Thus, if the employer failed to keep proper time records, the employee gets to give his best estimate of the hours given.
Another consequence is that if an employer fails to keep accurate records, the inference can arise that its failure to do so or its intentional alteration of the time records was intentional. This is very important because absent an intentional violation, a lawsuit for unpaid minimum wages or unpaid overtime has a two-year statute of limitations. But if the jury finds a willful or reckless disregard violation of the FLSA, a three-year statute of limitations applies. While the statute of limitation in most lawsuits mostly just controls when the deadline is to file, in an FLSA claim it means that the jury can look back at three years of wage violations instead of just two. The best way to put this is if your employer has been refusing to pay you overtime for, say the last five years, if there is evidence of willful conduct, the jury can give you damages for the past three years instead of just two. This increases the availability of damages by 50 percent.
Courts have held that the standard for determining willful behavior in an FLSA overtime case is whether “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999).
Courts will usually evaluate a number of factors to decide whether an employer’s behavior establishes knowledge or reckless disregard of the FLSA violations. Willfulness could also obviously be demonstrated by evidence demonstrated that an employer altered time records, manipulated time-keeping software records, or instructed workers to work off the clock. But that is not all. For example, an employer’s “failure to keep adequate payroll records,” “intentional manipulation of [its] records,” and practice of paying employees “off the books” could be “sufficient grounds for concluding that [the employer] did not act in good faith or with a reasonable belief that it was in compliance with the FLSA.” Chao v. Hotel Oasis, Inc., 493 F.3d 26, 35 (1st Cir. 2007). In Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1515 (1st Cir. 1991), the First Circuit Court of Appeals held that willfulness could be established where employees testified that employer forbade them from accurately recording their hours in order to prevent them from working over 40 hours per week and trigging the time and a half requirement. In Davila v. Menendez, 717 F.3d 1179, 1185 (11th Cir. 2013), the Eleventh Circuit Court of Appeals held willfulness could be found where the employer “did not record her working hours and paid her in cash.” In Hoffman v. Professional Med Team, 394 F.3d 414, 419 (6th Cir. 2005), the Sixth Circuit Court of Appeals held: “Cases under … FLSA have found willfulness most frequently in situations in which the employer deliberately chose to avoid researching the law’s terms or affirmatively evaded them.”). Willfulness can be found where defendants never consulted with an attorney or made reasonable efforts to determine lawfulness of their actions. Collinge v. IntelliQuick Delivery, Inc., 2018 WL 1088811, at *19 (D. Ariz. Jan. 9, 2018). And, willfulness can be found where there is evidence that the employer ignored repeated complaints of wage violations. See Cheng v. IDEAssociates, Inc., 2000 WL 1029219, at *8 (D. Mass. July 6, 2000); Ketchum v. City of Vallejo, 523 F. Supp. 2d 1150, 1157 (E.D. Cal. 2007).
A recent example of these problems was provided to us by Red Lion Home Care, who was sued for manipulating its employee’s time sheets so that it could pay them the same hourly rate for all hours worked regardless of whether they worked overtime. There is no other reason to manipulate time sheets except if you are knowing trying to avoid paying workers time and half. Falsifying time sheets cannot be an accident or negligent. And Red Lion Home Care got busted. As a result of getting caught in a wage theft scheme, the Pennsylvania home health care company was forced to pay $1.4 million to a group of 491 workers to settle the lawsuit.
If you believe that the company that you are working for is falsifying your time or manipulating time sheets resulting in you not being paid all of the wages owed to you for overtime compensation at a rate of one and half times your normal wages, best call the wage and hour lawyers at Spitz, The Employee’s Law Firm now. Our wage theft lawyer will protect your rights under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws whether you are an nonexempt employee that has been misclassified as exempt or independent contractor. When you contact the attorneys at Spitz, The Employee’s Law Firm today, you will get a free and confidential initial consultation. The wage and hour lawyers at Spitz will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call our Cleveland, Columbus, Cincinnati, Detroit, Youngstown and Toledo attorneys right now. Do not wait. The longer that you wait, the less that your claim may be worth.
The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “what can I do if I am forced to work off the clock”, “I’m not being paid time and a half for overtime” or “What do I do if my boss will not fix my pay after I complain about missing overtime hours”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.